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LIBRARY OF CONGRESS 




014 499 631 8 



F 314 
.U6 

Copy 1 LEGAL OPINIONS 



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HONORABLE JOSEPH M. WHITE, 

Of the House of Representatives, U. States, 

HONORABLE DANIEL WEBSTER, 

Senator in Congress, 

AND 

EDWARD LIVINGSTON, ESO. 

L. L. D. and late Secretary of State of the U. States, 

IN RELATION TO THB 

T2TLS OP TH3 IiT!Kn OT ALAG03T. 



NEW-YORK : 



H. CASSIDT, PRINTER, NO. 7 WALIi STREET. 

1836. 






CASE. 



On the 12th of July, 1817, the Duke of Alagon, a 
grandee of Spain of the first class, and Captain of the Royal 
Body Guard of the King, petitioned his Majesty for a grant 
of all the uncultivated land, not ceded, in East Florida, lying 
between certain specified geographical limits, and by a royal 
Order of the 17th of December, his Majesty's assent to 
the petition was signified, and a cession of the lands made, 
according to the laws and usages of the Spanish Monar- 
chy. 

On the 24th of Januasy, 1818, the Minister of his Catho- 
lic Majesty in the United States, proposed a cession of the 
Floridas to the American government ; and after the usual 
preliminary correspondence and negotiation, a Treaty was 
concluded on the 22d of February, 1819. 

By the 2d Article of the Treaty, his Catholic Majesty 
ceded to the United States " in full property and absolute do- 
minion," the Floridas, including vacant lands, forts, dock 
yards, public squares, &c. " which are not private property." 

By the 8th Article of the Treaty, it was stipulated, that all 
grants and concessions of land, made by his Catholic Majesty 
or his lawful authorities, prior to the 24th January, 1818, 
"shall remain ratified and confirmed," "(quederan ratificadas 
yconfirmadas,") now construed by the highest tribunal in the 
nation to import instant confirmation by force of the Treaty 



itself-r-which Treaty is, by the Constitution and laws of the" 
United States declared to be the " Supreme law." 

On the 27th of June, 1818, prior to the conclusion of the 
Treaty, Don Nicholas Garrido, Attorney in fact of the Duke 
of Alagon, presented to the Governor of East Florida, with- 
in whose Province and jurisdiction the lands were situated, 
this Royal concession, which was recognised and certified by 
the Governor, and "possession, real, actual, corporeal, and 
perfect, in due form of law, of all lands, which had not al- 
ready been granted," within the boundaries aforesaid, were 
decreed to him, according to the laws of Spain, and penalties 

declared against any one who should disturb that posses- 
sion. 

On the 24th of October, 1820, this Treaty was rati- 
fied on the part of Spain, in the usual form, " upon the word 
and fluth of a King," to execute and observe the various ar- 
ticles. 

After having announced this ratification, the King pro- 
ceeds to declare, that being " desirous of avoiding doubt or 
ambiguity concerning the meaning of the 8lh Article of the 
Treaty, in respect to the date, which is pointed out in it as 
the period for the confirmation of the grants of land, made 
by me, or by the competent authorities in my Royal name, 
which point of dute was fixed in the positive understanding 
of these grants of land made in favor of the Duke of Ala- 
gon, &c. being annulled by its tenor, I think proper to de- 
clare, that the said grants have remained, and do remain, 
entirely null and void." 

Upon this state of the case, the question is presented, 
and now to be decided in the Courts of the United States^^ 
whether the grant to the Duke of Alagon, obtained from 
th(5 authority and in the manner above pointed out, is im- 
puired or destroyed by the Royal declaration which accom- 
;dsnio<l thii? valilication of liie Tr«faty ? 



ARGUMENT AND OPINION. 

in the first place, I will assume what has never been contro- 
verted by the American Government, nor by the King, nor any 
authority under hira, that this grant truly bears date, at the 
period at which it purports to have been given, and that there is 
no question of its having been made, and registered in the 
Council of the Indies with all the forms and solemnities, which 
the laws of Spain require. There is then no controversy as to 
the date of the Grant, nor to the competency of the authority of 
the King to make it. It will bo found to be in due form of law, 
registered in the proper Office, and the Royal Patent delivered 
to the giantee, presented to the Governor of the Province in 
which the lands lie, and possession decreed and delivered, 
which has been continued to the present day. 

Whatever may have been the inducement, or consideration ot 
this grant, was a question exclusively for the decision of the 
King himself. In a work which has been published by Don 
Louis de Onis in Spain,entitled "Memoria sobre las negociaciones 
entrc Espana y los Estados Unidos de America de 1819," it is 
intimated that the Government of Spain was indebted to the 
Duke of Alagon to the amount of several millions of dollars for 
money due to, services rendered, and sacrifices made by hira for 
the Spanish Monarchy. 

However this may be, no inference can be drawn unfavorable 
to the Grant from its magnitude, if it be considered a pure do- 
nation. The Governmenis of Great Britain, France and Spain, 
have, in numerous instances made grants of much greater 
amount in quantity and value, to persons who had not the same 
claim upon the bounty of the Sovereign, that the Duke of 
Alagon had. 

The history of the last century will show, that whole Pro- 
vinces have been granted to Royal favorites, and no doubt has 
ever been raised, of the power to grant, though the policy of 
such grants might well be questioned. I need only refer to a 
few cases to sustain this observation. 

The whole Province of Venezuela, from Cape Vela to Marica- 



pua, was ceded by the King of Spain to one mercantile establish- 
ment, embracing a larger exent of territory than any two States 
of this Union. 

Louis the 14th granted the Colony of Louisiana to Crozat — 
and nearly the whole province of Vera Cruz and Potosiare held, 
by a species of title larger in amount, called Mayorazgo. Great 
Britain made numerous grants equal or greater in extent 
in all her Colonies. 

These grants are only referred to, for the purpose of showing 
that such concessions were not unusual in the Spanish Mo- 
narchy, nor in other countries, and that no conclusion can be 
drawn unfavorable to the Grant, on account of its extent. 

The concession was then made prior to, and before the 
limitation contained in the Treaty, and before any negocia- 
tion was ever entered into for the cession of the Floridas to the 
United States. 

At the period therefore of the negociation and conclusion of 
this Treaty, the Duke of Alagon had a perfect grant, made and 
registered with every proper formality, Avhich w^as confirmed by 
the Treaty itself, and being at the date thereof "private pro- 
perty" was excluded from the cession. The King having 
no authority to cede, and having himself reserved from 
the cession, the private property of his subjects, founded upon 
concessions dated prior to tlie 24th of January, 1818. It would 
appear to an unsophisticated mind, that in such a case, it would 
only be necessary to sliew, that the Grant itself was anterior to 
he period fixed upon by the two governments, prior to which all 
grants were declared to be valid, and subsequent to which, all 
grants were declared to be void; and that the grant was in fact 
made at the time it purports to bear dale. The reason why the 
Ministers charged with this negociation agreed upon the period 
of the 24th .January 1818, subsequent to which the United 
States claimed that all grants should be annulled, was. that on 
that day the first proposition w^as made on tlie part of his Cath- 
olic Majesty's Minister to negociate for a cession of the Floridas. 
It was not considered proper to recognize any title posterior in 
date, to the first proposition to cede the Territory. 



The most eminent civilians and jurists in this and other 
Countries, have not only doubted but denied the power of any 
government thus to vacate titles to private property acquired 
from a sovereign, or his competent authorities, having jurisdic. 
tion and power to make the grants at the time at which they 
were actually made. I need not, however go into this grave and 
important question. It is enough for my purpose, that the con- 
cession was made to the Duke ofAlagon before the 24th of 
January 1818. 

The opinions, views, anticipations, or imaginations of Kings 
or Ministers, can never deprive any individual of his just rights 
of property in any government, where there is either sound prin- 
ciples of legislation or of justice. Nor can the false declaration 
of a feeble Monarch, extorted from him by the threats of a 
powerful government, ever be construed in a Court of Justice, 
as a forfeiture of individual rights of property. Whatever may 
have been the understanding of diplomatists, private or public, 
official or unofficial, they cannot be taken into consideration in 
the construction of a Treaty, which by the Law of Nations, and 
by our own constitution was considered the supreme law of the 
land. 

When tliis convention was entered into, it was considered and 
admitted at the time of the negociations, that one third of the ter- 
ritories proposed to be ceded, were private property. The U. States 
agreed to pay five millions upon this supposition for the remain- 
der. It is now ascertained, that there is in the Floridas, east of 
the Perdido, thirty-two millions of acres of land, to say nothing 
of the twelve millions between the Mississippi, and the Perdido, 
to which the United States never had title before this treaty of 
cession, which I have conclusively demonstrated by documents 
from France and Spain, recently received and published. 

Of the 32,000,000 of acres, it is now ascertained, that inde. 
pendent of the Grant of the Duke ofAlagon, there is only three 
millions of acres granted, wiiich leaves more than seven mil- 
lions less than Spain negociated a cession of the Province ia 
tha "positive understanding" of having been made. The price 



of this seven millions and a frrction, ut ihe minimurn Govern- 
meut price, would amount to nine millions of dollars. If we 
assume that the uaderstanding and belief of Ministers are to 
govern, and not tiie Treaty itself, v/hat could the United States 
say against a reclamation of Spain for nine millions of dollars ? 
To such an application, the jVIinisters of the United States 
would reply by referring to the terms of the Treaty itself, and 
not to any previous negociations which led to its conclusion- 
If ihe United States from ignorance of the number and extent 
of the claims find that more than one third was granted, they 
have no more right to complain, than Spain would have had at 
the qi'antity falling below the estimate of her Minister. 

Upon this subject however I am not left to mere speculation. 
Great fundamental principles have been established by the Su- 
preme Court upon these questions of international law. Many 
points which were before the subject of discussion, have now 
become settled law. The Supreme Conrt in the ease of Arre- 
dondo and others against the United States, in 6th Peters' Re- 
ports, say that " they will decide whether the lands in contro- 
" versy were the property of the claimants, before the Treaty, 
" and if so, that its protection is as much guaranteed by the laws 
" of a Republic, as the ordinances of a monarchy.'' The Court 
furtherproceed to say, at page 717, that the principles by which 
a title is to be tested is wheiher by the law of the Province it 
" was property at the time the treaty took effect," 

The United States admit that at the date of the Treaty, the 
lands embraced in the Duke's Grant was private property in vir- 
tue of the concession of the King above mentioned. They al- 
ledge that they were deceived as to the date. Whether this be 
true or not, it is a matter with which the Duke of Alagon had 
no concern, atid cannot in any manner afiect his title to property. 
There are instances of more recent date, in which Ministeis 
have represented to their own governments, that they have ob- 
tained all that was due, when it has afterwards been ascertained 
that there had been a miscalculation of 50 per cent. This has 
not been considered as authorizing new reclamations for the 
remainder. 



it must be admitted tliea that the Duke ot Alagon had a per* 
feet title, made according to law, by a competent authority, 
consummalod bv presentation to the Governor, the King's re- 
presentative in the Province, and a decree of possession which 
the laws of Spain required to prevent conflict in the exercise of 
the Royal, and Provincial granting authority. 

In the other two cases referred to in the King's explanatory 
ratification, no such proceeding took place, and the grants are 
forfeited for a failure to take these preliminary, and essential 
steps to give them validity, and for other reasons unnecessary to 
be enumerated. Assuming what the government have admitted, 
and what has been proved, independent of their admissions, that 
the Duke had at one time, a full and absolute title to the land, 
I proceed to enquire, whether he has been divested of his title. 
This would have been a question of much more grave considera- 
tion a century gone by, when notions of eminent domain, and 
transcendental power in the King or State, was much more re- 
garded in Europe than at present. In countries where formerly 
the power of the Government was every thing, and the lives and 
properly of the subject nothing, such a question would be dis* 
posed of by the declaration of the will of the Prince. 

In modern times sounder views of Government, and more en- 
lightened principles of legislation prevail, not only in this, but 
in all other countries of the civilized world. 

I proceed then to enquire by what authority a grant in full 
property, conveying a complete title, has been vacated. The 
United States claiming tliis land as a part of the cession, must 
do it under that clause which transfers to them the " vacant 
lands." 

But as this had been previously disposed of by the Crown, it 
was no longer vacant, and was excluded from the cession. Can 
this declaration of the King include it in the cession? It can- 
not. The declaration of the King is erroneous in law, and false 
in fact. Neither the terms nor the tenor of the treaty exclude 
this grant. On the contrary it is confirmed by the te/ior and 
terms of the Treaty. 



10 

History furnishes us the example of many Kings who have 
misconceived and perverted laws, and mis-stated facts. 

The Courts of Crreat Britain have frequently declared the 
acts of the King, or of his Ministers lo be unconstitutional, and 
the highest Court in France pronounced the ordinances of 
Charles the X. to be a violation of the Charter, just before that 
revolution which lost him his empire, and his Crown. 

There is no revocation attempted in any other mode, than by 
a declaration which is false in fact, as well as void in law, for 
the want of competent power to annul the right of property of a 
subject, holding it by a legal title. This then is not a question 
depending on the attempt of one Nation, to transfer to another, 
the property of au individual with the cession of a Province 
under the pretext of the right of eminent domain, but it is a 
Royal declaration of what the tenor of a Treaty is, when all the 
world must see, it will bear no such construction. 

Plain and obvious as this view of the case is, I am not willing 
to place the question on that ground alone. 

I deny the united power of the two governments so to frame a 
Treaty, as to exclude by the most express terms the right of any 
man to his property witiiin the ceded territory. Neither the 
laws of Nations, the laws of Spain, or of the United States au- 
thorize or would justify it. This is not an open question. Ar- 
gument would be superfluous. The Supreme Court of the 
United States have decided it. 

Chief Justice Marshall in delivering the unanimous opinion 
of the Court in the case of Juan Percheman, 7th Peters, holds 
this language. 

"It may not be unworthy of remark, that it is very unusual, 
even in cases of Conquest, for the conqueror to do more than to 
displace the Sovereign, and assume dominion over the Country. 
The modern usage of Nations, which has become law, would be 
violated ; that sense of justice and of right which is acknow- 
ledged and felt by the whole civilized world, would be outraged, 
if private property should be generally confiscated, and private 
rights annulled. The people change their allegiance, their re- 
lation to their ancient Sovereign is dissolved, but their relations 



11 

lo each other, and ihcir rights of property remain undisturbed 
If this be the modern rule cA'cn in cases of conquest, who can 
doubt its application to a case of amicable cession of Territory ? 
Had Florida changed its sovereign, by an act containing no sti- 
pulation respecting the property of individuals, the right of pro- 
perly in all those who become subjects or citizens of the new 
government would have been unaffected by the change. It would 
have remained the same as under the ancient sovereign. The 
language of the second article conforms to this general principle: 
*' His Catholic Majesty cedes to the United States, in full pro- 
perty and sovereignty, all tlie territories which belong to him, 
situated to the eastward of the Mississippi, by the name of East 
and West Florida." A cession of territory is never understood 
to be a cession of the property belonging to its inhabitants. — 
The King cedes only that which belonged to him. Lands he 
had previously granted were not his to cede. Neither party so 
understood the cession. Neither party could consider itself 
as attempting a wrong to individuals, condemned by the practice 
of the whole civilized world." 

The "lands he had previously granted were not his to cede." 
Apply this to the case of the Duke of Alagon, and there is an 
end of the question. When I first heard of this case, I was un- 
der the impression, witliout examination, that by the fundamen- 
tal laws of Spain, the King had power, in virtue of his unre- 
stricted prerogative, and absolute power, to vacate or annul the 
rights of property of any of his subjects. Acting under this im- 
pression, founded more on the confidence, that the government 
would not have accepted tlie Decree, unless the power to give it 
was undoubted, I held the opinion for some years, that the title 
was invalid. 

Having, however, thoroughly examined, at Madrid, the Span- 
ish laws, I am satisfied that the King has no such poAver of re- 
vocation, and never had under the municipal laws and Consti- 
tution of that Monarchy. 

I take it for granted that whatever the King cannot do directly, 
he cannot do indirectly. In other words, if he has no power 
over the property of his subjects, by the fundamental laws of 



12 

the kiugdom, and can neither revoke grants, nor declare for- 
feitures, except in the mode pointed out by the laws, in virtue of 
his sovereign prerogative, he cannot, under the pretext of ex- 
plaining' a Treaty, when the Treaty itself is not susceptible of 
any such explanation, but in its terms and tenor, is in direct op- 
position to what is declared ; thus effecting an object condemned 
by the laws, and void for a violation of tliem. 

In the decadence of the Roman Empire of the West, Spain 
passed under the dominion of the Goths, who permitted the 
Spaniards the use of the Roman laws for some time, until the 
Gothic code was promulgated, called Liber Judicum, or in 
Spanish Fuero de los Juices, and Fuero Juzgo. The Arabs and 
Moors could not destroy this code in the Provinces, until the 
Fuero Viejo de Castillia, or old statutes of Castile, were pub- 
lished. These codes, as well as the amendments of Don 
Alonzo VII. in the Cortes of Najira, contained provisions simi- 
lar to those I shall have occasion to refer to. The Fuero Real 
and Partidas of Don Alonzo, the Wise, did not change this state 
of things. I, however, proceed to modern provisions more ac- 
cessible to every one, and more authoritative in their character. 

The first law to which I refer, will be found in the celebrated 
Ordinance of Alcala, passed in 1383, by the advice and consent 
of the Cortes, by Aljjhonso the XI, grand-son of Alphonso, the 
Wise, and after his grand-father, perhaps the greatest Monarch 
that ever sat on the Spanish throne. This Ordinance which 
contains many explanations, alterations and amendments to the 
Partidas, as well as additions thereto, was sanctioned and rati- 
fied at various times, in the most formal manner, by subsequent 
Kings of Spain, and may be regarded as one of the fundamental 
laws of the Empire, which the King, on taking his coronation 
oath, swears to observe. It contains, also, internal proof of the 
error which has been so generally committed, in regarding the 
Spanish Monarchy as an absolute despotism, or as possessing 
unlimited power, and to which I iiave already adverted. The 
Ordinance of Alcala is contained in the Fuero Viejo, or old 
Code of Castile — and the lav/ to v/hich I particularly refer 



1 "^ 

is Tit : 27, L. 3, and page 65. The following is a translation of 
the essential parts of it. 

"It belongs to Kings anil groat Princes to bestoAV great gifts, 
showing favor to their natural subjects and vassals, because being 
honored and rich, so much the more is the King and his estate 
the more honored, as that of his subjects is the more hon- 
ored and abundant in "wealth. And for this reason they have 
made donations of cities and towns and places, and other in- 
heritances to his people, as also to churches and to nobles, and rich 
men and gentlemen, and to others of his vassals or subjects, or 
Lords, orresidents in the Kingdom. Andbecausesomeareof the 
opinion that rents, services and the right to administer justice ; 
the prosecution of suits of services, may not be granted, or being 
given cannot be given forever, and because in books of the Parii- 
das, and in the Code of the laws, and in the acts and ancient cus- 
toms of Spain, and ordinances of the Cortes, and in some of them 
it is said, that it must be understood that these things can in no 
manner be given, and in others that they can only be given dur- 
ing the time of the King who gave them; and in other parts of 
the same it is said, that they may be given, and may endure for- 
ever, if the same are so expressed. Now in order to put an end 
to these doubt*, and bc-cause the grants, gifts and privileges made 
by the Kings and Princes, ovglit to be liberally (largamente) 
understood, and ought to stand forever, (durarpara sierapre) we 
declare, that the donations which have been made heretofore, to 
the present time, by the Kings from whom we have descended, 
or by us, or which shall be made by us, or by those who shall 
reign after us hereafter forever, and not in trust to churches, 
Monasteries, Nobles, to our rich men and gentlemen, to our vas- 
sals and natural bor.^. subjects, to Lords and residents in our 
Kingdom, whether they relate to the administration or other 
things specified, or any of them, that they have them and hold 
them forever, according to the words of their respective grants.'' 

" Roijal donations cannot be recalled without a delinquency 
on the part of the grantee^ and they shall pass to his heirs.^^ 

From the Fueio Real, Title 12. B. 3. L. 8. repeated Recopila- 
cion, de leyes, printed at Madrid in 1777, in Vol 3, Book 5, 



14 

Title 10. Law 6., and Novissiraa Recopilacion Book 3. Title 5, 
Law 1st. 

" The things which the King may give to a person, neither he 
nor any one else can take away without delinquency (sin culpa) 
and the person to whom the things are given, may do with them 
what he pleases in the same manner, as he can with regard to 
the rest of his property ; and if he die without a will, his heirs 
shall dispose of them, and his wife can demand no part of them, 
and on the other hand, the husband can demand no part of the 
the things which the King may give to his wife." 

The preceding law is translated from the Novissima Recopi- 
lacion, a code of Spanish law published at Madrid in 1805, by 
order of the King, and proclaimed by a Royal Cedula or Decree 
of July 15, 1805, as the only authorized collection of the laws 
then in force. 

It follows from the provisions of the foregoing laws, that the 
property of a Spanish subject granted to him by the Monarch, 
cannot be taken away or forfeited (sin culpa) and that forfeiture 
is declared by the law itself upon conviction. 

I have shewn tliat the grant was not annulled by the Treaty, 
but was confirmed by it. 

I have shewn too, that it could not be annulled by the Treaty 
if both Nations had concurred in a united declaration,pronouncing 
it so by name, but that such an arbitrary and outrageous viola- 
tion of the rights of property would be disregarded upon the 
principle established by the Supreme Court, announced in the 
forcible language of that illustiious man, whose name is identi- 
fied with liberty and the Constitution, and will be cherished and 
respected, as long as either exists. 

The Constitution of Spain was promulgated in March 1812, 
rescinded in June 1814, and again re-established in March 1820, 
and on the 24lh of October 1820, was in full force in Spain, 

The Royal declaration of that date, which accompanied the 
ratification of the Treaty, is the only ground that can be relied 
upon, to invalidate the title of the Duke of Alagon. Without 
this it was perfect in all respects, in form, date, registration, ac- 
knowledgement in the Province, and possession. 



15 

This declaration then must have constituted a forfeiture or re- 
vocation, but it does not purport to do, nor does it in fact effect 
either. If it professed to do either, it is in violation of the Con- 
stitution then in force, as it was of the law to which I have re- 
ferred. By the Constitution the " sovereignty resides in the 
nation." 

No act of the King is valid without the consent of the Cortes. 
It does not appear that this declaration ever received the sanction 
of the Cortes. It is very certain that it did not. The document 
itself shews, that it was a declaration extorted by the American 
Government, aod must be considered a mere brutumfulmen, so 
far as the rights of the Duke of Alagon are concerned. The 
King with the same propriety might, by recitation, have included 
in the cession, Porto Rico or Cuba, declaring it to be the inten- 
tion of the contracting parlies, or he might by such a recitation, 
disfranchise, transfer and assign the property of the Province of 
Cataluna to the United States. 

Suppose the President of the United Slates Avere to declare 
that a certain provision in the treaty, which in its tenor and terms 
ratifies and confirms the rightofan individual, was precisely the 
reverse of what it in truth was. Is there any one who would 
contend that such an unconstitutional act was binding here, or 
in the tribunals of any other country ? If the Cortes had ratified 
this act, still it would have been invalid, because the King and 
Cortes have no power to divest the property of a subject, unless 
upon the terms and in the manner prescribed by law ; and that 
is in the mode pointed out upon conviction of an offence, where 
the law itself declares the forfeiture. 

The constitution of Spain provides that private property 
shall not be taken for the use ot ihe government, without 
a valuation of good and lawful men (bucnos hombres) and 
payment of the valuation before it is thus appropriated. This is 
the only mode authorized, either by the laws or Constitution of 
the Spanish Monarchy, by which the King or any subordinate 
officer can touch the property of any individual within the king- 
dom, and this refers only to ordinary impressments, when the 
exigencies of the public service, in time of war, is paramount 



16 

to the right of property of the subject. The false declaration of 
a feeble Monarch, annexed to the ratification of a Treaty is not, 
and does not purport to be, such an appropriation of pri- 
vate property, and is not of that class of cases contemplated by 
the Constitution. If it were susceptible by any possibility of 
any such construction, there was no previous valuation of good 
and lawful men, or payment before the declaratory act, which I 
have shewn cannot bear such interpretation. 

I am, therefore, of opinion — 

1st. That the Duke of Alagon has a perfect title to the un- 
granted land, at the dale of the presentation of his title to the 
Governor of East Florida, within the boundaries of his grant. 

2dly. That this title bearing date before the 24ih of January, 
1818, was confirmed by the Treaty. 

3rdly. That the decree of the King of Spain, purporting to 
declare the tenor of the Treaty, is erroneous in fact, and void in 
law. 

4thly. That every question upon which the title of the Duke 
of Alagon depends, has been decided in the case referred to in 
the foregoing Opinion and Argument. 

JOS. M. WHITE. 
Washington, March 1st, 1838. 



CASE. 



The King of Spain, by Royal grant, dated the 17th 
day of December, 1817, granted certain lands in East Flori- 
da to the Duke of Alagon ; of which formal and regular 
possession was taken by the Duke's agents, on the 27th day 
of June following. 

The Treaty between the United and Spain was signed 
at Washington on the 22d day of February, 1819, and the 
Second and Eighth Articles of that Treaty, are in these 
words : 

" Article 2. 

•' His Catholic Majesty cedes to the United States, in full 
•' property and sovereignty, all the territories which belong 
" to him, situated to the eastward of the Mississippi, known 
" by the name of East and West Florid;!. The adjacent 
" islands dependent on said Provinces, all public lots and 
"squares, vacant lands, public edifices, fortifications, bar- 
" racks, and other buildings, which arc not private property, 
" archives and documents which relate directly to the pro- 
" perty and sovereignty of said Provinces, are included in 
'' this article. The said archives and documents shall be 
" left in possession of the Commissioners or Officers of the 
" United States duly authorised to receive them." 

" Article 8. 

" All the grants of land made before the 24th of January, 
•' 1818, by His Catholic Majesty, or by his lawful authori- 



18 

" ties, in the said Territories ceded by His Majesty to the 
" United States, shall be ratified and confirmed to the persons 
" in possession of the lands, to the same extent that the same 
" grants would be valid if the Territories had remained un- 
*' der the dominion of His Catholic Majesty. But the 
"owners in possession of such lands, who, by reason of the 
" recent circumstances of the Spanish nation, and the revolu- 
" tions in Europe, have been prevented from fulfilling all the 
" conditions of their grants, shall complete them within the 
" terms limited in the same, respectively, from the date of 
" this Treaty ; in default of which, the said grants shall be 
" null and void. All grants made since the said 24th of 
" January, 1818, when the first proposal, on the part of His 
" Catholic Majesty, for the cession of the Floridas was made, 
'• are hereby declared, and agreed to be, null and void." 

It has been judicially settled by the highest authority that 
the words " shall be ratified and confirmed,^'' as used in this 
Eighth Article, import a direct and present confirmation, by 
virtue of the Treaty itself, without the necessity of any fur- 
ther act by the Government. 

Events prevented the ratification of this Treaty until the 
24th day of October, 1 820, when it was ratified on the part 
of Spain, in the following words : 

" Whereas, on the 22d day of February, of the year one 
•f thousand eight hundred and nineteen last past, a Treaty 
" was concluded and signed in the City of Washington, be- 
" tween Don Luis de Onis, my Envoy Extraordinary and 
" Minister Plenipotentiary, and John Quincy Adams, Es- 
" quire. Secretary of State of the United States of America, 
!• competently authorised by both parties, consisting of sixteen 
" Articles, which had for their object the arrangement of 
•• differences and of limits between both governments and 



19 

'• their respective Territories ; which are of the following 
" form and literal tenor. — 

[Here follows the Treaty.\ 

*' Theretore, having seen and examined the sixteen Arti- 
'• cles aforesaid, and having first obtaiiiecl the consent and 
*^ authority of the General Cortes of the nation, with respect 
" to the cession vientioncd and stipulated in the 2d and od 
"Articles, I approve aud ratify all and every one of the Ar- 
*' tides referred to, and the clauses which are contained in 
" them ; and in virtue of these presents, I approve and ra-tify 
" them ; promising' on the faith and word of a King, to exe 
"cute and observe them, and to cause them to be executed 
"and observed, entirely, as if I myself had signed them; 
"and that the circumstance of having exceeded the term of 
" six months, fixed for the exchange of the ratifications in 
" the sixteenth article, may afford no obstacle in any man- 
*' ner, it is my deliberate will that the present ratification be 
*' as valid and firm, and produce the same effects, as if it 
" had been done within the determined period. Desirous at 
" the same time of avaiding any doubt or ambiguity con- 
"cerning the meaning of the Sth Article of the said Treaty, 
" in respect to the date which is pointed out in it as the pe- 
" riod for the confirmation of the grants of lands in the Flo- 
*' ridas, made by me, or by the competent authorities in my 
" Royal name, which point of date was fixed in the positive 
" understanding of the three grants of land made in favor of 
"the Duke of Alagon, the Count of Punorostro, and Don 
*' Pedro de Vargas, being annulled by its tenor, I think 
" proper to declare that the said three grants have remained, 
" and do remain, entirely annulled and invalid ; and that 
"neither the three individuals mentioned, nor those who 
" may have title or interest through them, can avail them- 



20 

" selves of the said grants at any time/or iia any manner 
'! under which explicit declaration the said Sth Article is to 
" be understood as ratified. In the faith of all which, I have 
"commanded to despatch these Presents. Signed by my 
" hand, sealed with my secret seal, and countersigned by 
" the underwritten, my Secretary of Despatch of State. 

" Given at Madrid the twentj^-fourth of October, one 
"thousand eight hundred and twenty. 

(Signed) "FERNANDO. 

(Countersigned) 

" EvARisTO Perez De Castro." 

It appears, then, that the sixteen Articles of the Treaty 
were ratified by the King, he having first obtained the con- 
sent and authority of the General Cortes, with respect to 
the cession stipulated in the second and third articles. 

This recital, of itself, sufficiently shows that for the alien- 
ation of any part of the Territory of Spain, the consent and 
authority ofthe Cortes, were indispensable. The question, 
then, is, what is the eflecl of the subsequent declaration, 
made by the sole authority of the King, that the date was 
fixed, in the Treaty, with a positive understanding, that the 
grant to the Duke of Alagon, and the other two grants men- 
tioned, were annulled by its tenor, and that the said three 
grants have remained, and do remain annulled and invalid. 

OPINION 

1. I am of opinion, that the grant by the King, followed 
by possession taken in due and solemn form, constituted a 
good title to the lands, in the Duke of Alagon. 

2. That this land having thus become private property, 
was expressly excluded from the cession, by the terms of the 
Treaty, as ratified by the King, by authority of the Cortes. 



21 

3. That the declaration, attached to the ratification by the 
King, being- made by his sole authority, does not constitute 
a cession, by itself, nor enlarge the terms of the cession, to 
which the Cortes had assented. 

4. That it does not appear that any revocation by the 
King had been made, or attempted, by a distinct act of revo- 
cation, or any other proceeding, except the declaration afore- 
said. 

I am of opinion therefore, that the grant to the Duke of 

Alagon must stand, as private property secured by the 

Treaty. 

DANL. WEBSTER. 

March 4, 183G 



CASE. 



On the 12th July, 1817, the Duke of Alagon petitioned the 
King of Spain for the grant of a large tract of land in the 
Province of East Florida, which by a Royal Order, dated 
the 17lh December, in the same year, was granted to him, 
and possession delivered to him, under it, on the 27th day 
of June, 1818, by the Governor of East Florida, pursuant 
to a Royal Order, dated the 6th February in the same 
year. 

This grant was bona fide made to reward the petitioner 
for his services, and not in contemplation of the cession 
hereinafter mentioned. 

By the Spanish Constitution, in force at the time, the 
King had the power to make such grant. 

He had also the power to make Treaties, but could alien- 
ate no part of the Territory of Spain, without the consent of 
the Cortes. 

The Spanish territories comprehended the Floridas. 

In February, 1819, a Treaty was signed by the Plenipo- 
tentiaries of the United States and Spain, by the Second Ar- 
ticle of which a cession was made by Spain to the United 
States of the whole Territory in which the lands granted 
are situated, with all the vacant lands, &c. which are not 
private property. By the 8th Article it is stipulated as fol- 
lows — '♦ All the grants of land made before the 24th Janu- 



23 

ar}', 1818, by his Catholic Majesty, or by his lawful author- 
ities, in the ceded territories, shall remain confirmed and 
ralilied to the possessors of tiiem,to the same extent that the 
same grants would have been valid if the same Territories 
had continued under the dominion of his Catholic Majesty; 
and all grants made since the said 24lh day of January, 1818, 
when the first proposal on the part of his Catholic Majesty 
for the cession of the Floridas was made, are hereby de- 
clared and agreed to be null and void." 

The Senate of the United States, on the 24th day of Feb- 
ruary following, ordered the ratification of the Trealy, with 
a declaration that it was understood that this grant to Ala- 
gon, and two others to Punonrestro and Vargas, should be 
void under the true construction of the 8th Article, and the 
same was in this manner ratified by the President, pursuant 
to such'advice. 

After some demur and delay, occassioned in part by this 
declaration made by the Senate, his Catholic Majesty, on the 
24th October, 1820, ratified the Treaty, reciting that he had 
"first obtained the consent of the Cortes of the nation, with 
respect to the cession mentioned and stipulated, on the 2nd 
and 3rd Articles," and declaring that, to avoid ambiguity or 
doubt concerning tlie meaning of the 8th Article of the said 
Treaty, in respect to the date which is pointed out in it as the 
period for the confirmation of the grants of land in the Flo- 
ridas, made by me or by the competent authorities in my 
name, which point of date was fixed in the positive under- 
standing that of the three grants of land made in favor of the 
Duke of Alagon, the chevilicr Punonrostro, and D. P. 
de Vargas, being annulled by its tenor, I think proper to de- 
clare, that the three grants have remained, and do remain, 
entirely annulled and invalid ; and that neither the three in- 
dividuals mentioned, nor those who may have title or inter- 
est through them, can avail themselves of the said grants at 



24 

any time, or in any manner — under which explicit declara- 
tion the said 8th Article is understood as ratified." 

The Treaty was again submitted to the Senate, with the 
explanation contained in the ratification by his Catholic Ma- 
jesty, and they having consented to, and advised the ratifi- 
cation in that form, the ratifications were exchanged in the 
year 1821, and formal delivery of the Territories took place 
in pursuance thereof. 

Two other provisions of the Constitution of Spain are ne- 
cessary to be considered. 

By the one it is declared, " that the King shall not take 
the property of any person or corporation, but if at any time 
it shall be necessary for an object of acknowledged public 
utility, to take the property of an individual, it shall not be 
done unless he be, at the same time, indemnified, and a fair 
equivalent given to him upon sufficient enquiry made by fit 
and proper men." 

By the other " the sovereign power is declared to reside 
in the nation, that it alone possesses the right of making fun- 
damental laws, and that the legislative power belongs to the 
Cortes as Avell as the King." 

On this statement oi fact comes the following 

QUESTION. 

Is the grant to the Duke of Alagon legally annulled by 
the Treaty as ratified ? 



25 

OPINION. 

During the ihort time allowed for considering this case, 1 
have not had it in my power to procure a copy of the Constitu- 
tion of Spain, under the authority of which, the grant and the 
Treaty mentioned in the case, were made; my conclusions are 
drawn from the facts as stated, assuming them to be correct, 
and the extracts furnished me to be faithfully made. 

First, I think it cannot be denied, that the sovereign power of 
every nation has a right to declare by what tenure the property 
possessed by its citizens shall be held. It may vest in the gov- 
ernment it establishes, or in any branch of it, the right to take 
private property for the public use, or to alienate parts of its ter- 
ritory to a foreign power. It may designate on what cases, and 
upon what conditions this power may be exercised ; or it may 
confer it Avithout limits. In this case the sovereign power is 
declared to reside in the nation, by which I understand the 
people 

By the constitution, the nation has invested (the first men- 
tioned power, that of taking private property for public use, as 
it seems to me, in the King; but it is not very clearly expressed. 

There is first an inhibition against his taking private property 
at all, and then a qualification that it may be done, whenever it 
may become necessary to take it for public use ; but only on 
giving compensation at the time. It does not, however, say 
that the King may take it for that purpose and on those condi- 
tions. Yet, as no other person is mentioned, I think that, ta- 
ken in connection with the context, it was intended that the 
King should be impowered to judge of the necessity, and to 
take property when the occasion required, on the prescribed con- 
ditions. 

The second power, that of alienating the public Territory, 
is expressly vested in the King jointly with the Cortes, without 
any restrictions. 

The right of alienation must necessarily give that of deci- 
ding on what terms the cession is to be made. If the cession of 
territory be made on terms agreed on by both of the constitu- 



26 

tional powers, these terms cannot be allowed by one, without 
the assent of the other. 

The King of Spain was the constitutional organ of the gov- 
ernment, to treat with foreign nations. His declaration in rati- 
fying the Treaty, that the Cortes had assented to the 2nd and 
3rd Articles, must be conclusive, unless (which cannot be sup- 
posed) the United States had notice that the Cortes had refused ; 
and his declaration, or other equivalent evidence, that the Cortes 
had sanctioned the alteration in the terms, was equally neces- 
sary. 

Every nation is bound to take notice, in its conventions with 
another, of the constitutional power of the functionary with 
whom they treat — that is to say, they must see that he has the 
power to do the act. But they are not bound to see that he ful- 
fills the conditions by which it is entrusted to him. Thus, the 
United States were bound to require evidence that the Cortes 
had assented to the alteration; because without this the King 
had no power. But if, in a Treaty, the King should stipulate 
in exchange for some public advantage, that the nation with 
which he treats should be exonerated from the payment of just 
debts due to his subjects, the debts would be legally discharged 
without enquiry whether the King, before he applied this private 
property to a public use, had performed the constitutional condi- 
tions of making compensation. 

From this last position it would result, that if the stipulation 
to annul the grant to the Duke of Alagon, had been contained 
in the Treaty, unconnected with the cession, the fair inference 
would have been that the resumption was necessary for a public 
use, and that compensation had been made. But when the 
Cortes gave their assent to the cession, on condition that private 
property should be preserved, and that no grants should be de- 
clared void but those subsequent to a certain date, that date 
could not, in my opinion, be altered, without the assent ot the 
Cortes. 

From all which, I come to the conclusion that the grant 
made to the Duke of Alagon, is valid, notwithstanding the de- 



27 

claratioQ contained in the ratification of the King, unless evi- 
dence can be produced that the alteration had received the pre- 
vious assent, or subsequent ratification of the Cortes. 

[Signed] 

EDWD LIVINGSTON. 

9th March, 1836. 



J 



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